Hearsay

• Headlines
• Law
  • Definitions
  • Criminal Proceedings
  • Matter stated
• Exceptions to the rule against Hearsay
• S.114(1)(a) The CJA 2003 Act or any other statutory provision makes it admissible
• CJA 2003 Statutory Gateways to Admissibility
  • S.116 Unavailable Witnesses
  • S.117 Business Documents
  • S.119 Previous Inconsistent Statements
  • S.120 Previous Consistent Statements
  • Other Statutory Exceptions to the Rule Against Hearsay
• S.114(1)(b) The common law exceptions preserved by section 118
• S.114(1)(c) All parties to the proceedings agree to it being admissible
• S.114(1)(d) The court is satisfied that it is in the interests of justice for it to be admissible
• Multiple Hearsay (S.121 CJA)
• Statements in documents as exhibits (S.122 CJA)
• Capability of the maker of the statement (S.123 CJA)
• Credability of the maker of the statement (S.124 CJA)
• Stopping the trial where the evidence is unconvincing (S.125 CJA)
• General discretion to exclude Hearsay evidence (S.126 CJA)
• Expert Evidence: (S.127 CJA)
• Confessions by co-accused
• Representations other than by a person
• Evidence at Retrial
• Policy and Practice
• Charging
  • Case Preparation
• Rules of court
• Proof
• Annex A: S.116 Hearsay, criteria and potential challenges
• Annex B: Useful cases where evidence was held not to be Hearsay

Headlines

• The law on hearsay is set out in the Criminal Justice Act 2003 (CJA) sections 114 - 136.
• "Hearsay" means a "statement not made in oral evidence that is evidence of any matter stated." (Section 114(1) CJA 2003).
• Hearsay evidence is inadmissible in criminal proceedings except where there is some statutory provision which renders it admissible or where a common law rule making it admissible is preserved by section 118 CJA, or by agreement of all parties to the proceedings, or where the court is satisfied that it is in the interests of justice for it to be admissible (section 114(1) CJA 2003).
• There is no absolute principle that a conviction based solely or decisively on hearsay evidence is unfair as there are counter balancing measures in the hearsay framework of the CJA to make the trial fair (R v Horncastle[2010] 2 AC 373).
• Written notice must be given under the Criminal Procedure Rules (CrimPR) to the other party and to the court when making an application to admit hearsay evidence in the following cases:
  • in the interests of justice (under section 114(1)(d) CJA 2003);
  • where a witness is unavailable (section 116 CJA 2003);
  • where the evidence is in a statement prepared for the purposes of criminal proceedings (section 117(1)(c) CJA);
  • where the evidence is multiple hearsay (section 121 CJA 2003).

• Courts have an express power to exclude hearsay evidence (section 126 CJA 2003) and to stop a case where hearsay evidence is unconvincing (section 125 CJA 2003).

Law

The admissibility of hearsay evidence in criminal proceedings is set out in sections 114 and 136 of Chapter 2 Criminal Justice Act 2003 and applies to all criminal proceedings begun on or after 4th April 2005 (section 141 Criminal Justice Act 2003).

Definitions

Hearsay

Hearsay is not explicitly defined in the CJA but the opening words of s.114(1) taken together with s.115(3) effectively define it as a representation of fact or opinion made by a person, otherwise than in oral evidence in the proceedings in question, when tendered as evidence of any matter stated therein.

Statement

Section 115(2) defines a 'statement' as "any representation of fact or opinion made by a person by whatever means"; and it includes a representation made in a sketch, photo fit or other pictorial form.

Criminal Proceedings

'Criminal proceedings' means "criminal proceedings in relation to which the strict rules of evidence" apply (section 134 Criminal Justice Act 2003), and includes:

• Trials;
• Newton hearings;
• A preparatory hearing, because when such a hearing is ordered, "the trial begins with that hearing" (section 30 Criminal Procedure and Investigation Act 1996 and R v H [2006] 1 Cr. App. R 4);
• A hearing pursuant to section 4A Criminal Procedure (Insanity) Act 1964 to determine whether the defendant did the act or made the omission charged (R v Chal [2007] EWCA Crim 2647);

Although not proceedings "in relation to which the strict rules of evidence apply" in proceedings under the Proceeds of Crime Act 2002 where the admissibility of a statement or the weight to be attached to it are of importance and seriously disputed, the court may be assisted by considering the factors referred to section 114(2) CJA as well as section 116.

The Civil Evidence Act 1995 applies in proceedings for Criminal Behaviour Orders. See also Criminal Behaviour Orders elsewhere in this guidance.

Matter stated

A 'matter stated' is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated - Section 115(3).

The effect of this definition of statement is to enable evidence to be admitted of 'implied assertions'. This reverses the decision in R v Kearley (1992) 2 AC 228 in which police answered telephone calls and personal calls to the defendant's home from people asking about drugs that the defendant had for sale. The prosecution wished to adduce the evidence to prove that the intended recipient of the calls was a dealer in drugs, without evidence from the callers themselves. The House of Lords decided that, as evidence of the fact that the defendant dealt in drugs, the caller's words were hearsay and thus inadmissible.

The case would be decided differently now as the purpose of the calls was not to cause another person to believe that the recipient of the call was a drug dealer but simply to request drugs. This means that they fall outside the provisions of s.115(3) of the CJA and so are no longer considered to be hearsay. In R v Singh [2006] EWCA Crim 660, the Court of Appeal stated that the effect of the CJA 2003 was to revoke the decision in Kearley and that 'implied assertions' were not hearsay.

In R v Twist and Others [2011] EWCA Crim 1143, the Court of Appeal strongly recommended avoidance of the difficult concept of the "implied assertion" because the CJA 2003 focuses on the 'matter stated', which it is sought to prove and suggested the following approach when considering whether the hearsay rules applied:

• identify what relevant fact (matter) the statement is intended to prove;
• ask whether there is a statement of that matter in the communication. If not, then no question of hearsay arises (whatever other matters may be contained in the communication);
• If there was such a statement, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true. If yes, it is hearsay. If no, it is not.

The answers to these questions will depend on the facts of the case. The same communication will sometimes be hearsay and sometimes not, depending on the fact which it is intended to prove.

Three stage flow chart

Download three stage flowchart (PDF file, approx 227kb)

Exceptions to the rule against Hearsay

Section 114(1) CJA 2003 provides four circumstances in which hearsay evidence is admissible in criminal proceedings:

• The CJA or any other statutory provision makes it admissible;
• It is one of the common law exceptions preserved by section 118 (see below)
• All parties to the proceedings agree to it being admissible; or;
• The court is satisfied that it is in the interests of justice for it to be admissible.

Any hearsay evidence which cannot be brought within at least one of (a) - (d) above is inadmissible.

S.114(1)(a) The CJA 2003 Act or any other statutory provision makes it admissible

CJA 2003 Statutory Gateways to Admissibility:

S.116 Unavailable Witnesses

Where an identified witness is not available for one of the following reasons a statement made by them may be admitted in evidence. There is no general principle in the CJA which makes anonymous hearsay inadmissible (R v Brown [2019] EWCA 1143) but if the section 116 gateway is relied upon then it is a pre-condition of its use that the witness be identified. If that is satisfied then the unavailable witness' evidence may be admitted if:

• the person is dead: Section 116(2)(a):
• the person is unfit to be a witness because of their bodily or mental condition: Section 116(2)(b);
• the person is outside the United Kingdom and it is not reasonably practicable to secure their attendance Section 116(2)(c);
• the person cannot be found although such steps as it is reasonably practicable to take to find them have been taken: Section 116(2)(d)
• the person does not give (or does not continue to give) oral evidence through fear: Section 116(2)(e).

The last reason (in fear) cannot be used unless 1. the court considers that it is in the interests of justice to admit the statement and 2. the fear has not been provoked by the party seeking to adduce the evidence in question. In determining whether it is in the interests of justice to admit it, the court must have regard to any relevant circumstances including the statement's contents, the risk of unfairness and the availability of special measures (section 116(4) CJA.) In Rv Riat [2012] EWCA 1509 the Court of Appeal emphasised the need for the judge to ensure that evidence of fear was rigorously tested and that all possibilities for the witness giving oral evidence were investigated.

The burden of proof for establishing that a witness is unavailable for one of the reasons listed above lies on the party seeking to adduce their hearsay evidence. The standard is beyond reasonable doubt for the prosecution and on the balance of probabilities for the defence.

If the gateway relied on is the death of the witness, the court will move straight to assessing whether the hearsay evidence can be admitted without compromising the fairness of the trial. In the case of the other exceptions then there will need to be some further enquiry to assess whether the relevant condition is met.

'Unfit' means unfit to give evidence, rather than unfit to attend court and so the fact that a witness might be capable of physically coming to the court building will not prevent their evidence being admitted under section 116(2)(b) if they could not have given evidence once there.

In McEwan v DPP (2007) 171 JP 308 the Administrative Court described as "unwarranted" the justices' conclusion that a witness' chronic bowel condition made him unfit to give evidence, based on a doctor's letter which said that the stress of a court appearance might exacerbate his condition.

Being unfit because of mental condition does not mean unfit due to mental illness. In R v C(A) [2014] EWCA Crim 371 the Court of Appeal held that the judge was entitled to conclude that the child complainant in a rape case was unfit to give evidence due to the trauma she would suffer.

(See also Annex A for a table of exceptions under this section and potential challenges and Annex B for a list of useful cases with examples of statements held to be original evidence and not hearsay)

S.117 Business Documents

Section 117 allows a statement contained in a business document to be admissible of any matter stated if:

• Oral evidence would be admissible as evidence of the matter;
• The document was created or received by a person in the course of their occupation, or as the holder of a paid or unpaid office;
• The person who supplied the information contained in the statement had personal knowledge of the matters dealt with; and
• If the information is multiple hearsay then each person passing it on also received it in the course of their occupation, or as the holder of a paid or unpaid office: Section 117(2).

Additional requirements are imposed in the case of any documents which were prepared in contemplation of criminal proceedings (other than some exceptions for overseas evidence set out at section 117(4)(b)). The additional requirements, which are set out at section 117(5), are:

• That the witness is unavailable (meeting the requirements under section 116 above: dead etc.); or
• That the witness could not be expected to remember the matters referred to.

Documents where these additional requirements must be met will include statements of fraud investigators and police officer's notes. However, it may be that the information upon which the fraud investigator bases their statement will be admissible, as much of that information may be contained in business documents admissible under section 117(2).

See section 127 below for the special rules governing the use by an expert witness of documents prepared for criminal proceedings.

Documents admissible under section 117 will be wide ranging and include company correspondence, hospital records, a transcript of evidence at a re-trial and a note made by an operator working for a paging company that messages have been left for a customer (Rock [1994] Crim LR 843 a case decided under the previous statutory provisions admitting hearsay from business documents).

The person supplying the information is the "relevant person," not the person who recorded the statement: Section 117(2)(b). Cases decided under section 24 of the Criminal Justice Act 1988, which was less clear on the point, should therefore be interpreted with this change in mind. There is no requirement under section 117 for any statement describing how the business documents relied upon was compiled. In R v O'Connor the Court of Appeal held that the court might draw an inference from the face of the documents themselves as to the criteria set out in section 117.

Although admissibility is generally automatic, there is limited discretion under Section 117(7) given to the court to exclude evidence if satisfied that the statement's reliability is doubtful in view of:

• Its contents;
• The source of the information contained in it;
• The way in which or the circumstances in which the information was supplied or received; or
• The way in which or the circumstances in which the document concerned was created or received.

This provision is of particular importance to the prosecution as it is the only way of challenging the admissibility of business and other documents tendered by the defence. The test is in favour of admissibility rather than in favour of exclusion.

(See also Annex B for a list of useful cases with examples of statements held to be original evidence and not hearsay)

S.119 Previous Inconsistent Statements

Previous inconsistent statements made by a witness are admissible as evidence of the truth of the matters stated therein under this section. This changes the position at common law whereby an inconsistent statement could only go to the issue of the weight to be attached to the witness' oral evidence and was not evidence of the truth of its contents.

R v Joyce [2005] EWCA 1785:The defendant was positively identified by several witnesses who made detailed statements setting out the certainty of their identification. At trial the witnesses all claimed that they were now uncertain as to their identification, contrary to their previous statements. The clear implication was that the witnesses had been put under pressure to change their evidence. The judge admitted the previous statements as evidence of the original identifications and the jury convicted on the basis that these statements were true.

S.120 Previous Consistent Statements

In addition to inconsistent statement, any previous statement made by a witness is admissible as proof of its contents if it is adduced in evidence:

• To rebut an allegation of recent fabrication; or
• As a result of the witness being cross-examined on a memory-refreshing document; or
• If the witness confirms that they made the statement and that it is truthful - provided that

1. It relates to the identity of a person, place or thing; or
2. It was made while matters which they now do not remember were still fresh in their memory; or
3. It is a recent complaint by a victim relating to the offence in the case and the victim has already given oral evidence of that offence.

A prosecutor should always consider introducing a previous statement if it contains a detailed description: section 120(5). This assists the witness giving evidence and enables the court to be given the best evidence. It removes the "memory test" aspect of giving evidence.

Other Statutory Exceptions to the Rule Against Hearsay

The primary statute which provides for the admissibility of hearsay is the CJA 2003 itself. However, some other statutory exceptions remain in force. The most commonly used examples of these include:

• Section 9 of the Criminal Justice Act 1967 (CJA 1967) (written witness statements);
• Section 30 of the Criminal Justice Act 1988 (Expert's report).Note the need for the report to comply with CrimPR 19.4 unless it is agreed. An SFR1 is not an expert's report compliant with CrimPR 19.4 for these purposes: Hunt v CPS [2018] EWHC 3341(Admin);
• Section 3 of the Bankers' Books Evidence Act 1879 (copy of any entry in a banker's book evidence of the matters recorded therein.) This evidence will usually also be admissible under section 117 CJA (business documents) but prosecutors should be aware of the restrictions on compellability imposed by section 6: a bank officer cannot be compelled to give any evidence or produce any exhibit which could have been proved under the Act.

S.114(1)(b)The common law exceptions preserved by section 118

All common law exceptions not explicitly preserved under section 118 are abolished. The remaining common law exceptions which are most likely to be encountered are as follows:

Res Gestae

Res Gestae statements are broken down into three types:

1. Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement;
3. Statements relating to a physical or mental state.

Witness emotionally overpowered

The event giving rise to the overpowering emotion must be the criminal act itself. The correct test was summarised in R v Andrews (1987) 84 Cr App R 382 in which the House of Lords said that the trial judge must ask whether the possibility of concoction or distortion can be disregarded. In answering that question the judge must have regard to:

• how startling or dramatic the event was;
• how spontaneous the statement was;
• whether the triggering event was still operative when the statement was made;
• Any special features relevant to the possibility of distortion or concoction (e.g. evidence of a motive to fabricate false evidence); and
• Any special features relevant to the possibility of error (e.g. an identification made by a witness with particularly poor eyesight).

Statements accompanying acts

"...when there is an act accompanied by a statement which is so mixed up with it as to become part of the res gestae, evidence of such a statement may be given.": Howe v Malkin (1878) 40 LT 196

Statements about physical or mental state

Statements made by a person as to their physical or mental state (including statements about their opinion) are evidence of the truth of their having such a state at or around the time that the statements were made. Whether the statement is sufficiently close in time to qualify will be for the tribunal of fact to decide.

Although the courts have deprecated any attempt to use res gestae to avoid calling a witness who is available there is no reason why a res gestae statement by a witness who is available and attends court cannot be used in evidence in addition to their oral evidence: (R v Shickle unreported 30 July 1997).

Public Information

• Published works dealing with matters of a public nature, public documents and public records are all admissible under common law;

• A person is permitted to give evidence of their age or date or place of birth, even though this information is hearsay.

Confessions

Confessions (including mixed statements) by the accused are admissible as to their truth. See also Confessions, Unfairly Obtained Evidence and Breaches of PACE elsewhere in this Legal Guidance. The rule which allows an accusation in the defendant's hearing to be adduced if the circumstances were such as to call for a denial is preserved because the effect of the non-denial is that it amounts to a confession.

Admissions by Agents

Admissions made by agents (such as a lawyer acting for the defendant) are preserved as admissible exceptions to the hearsay rule. In R (Firth) v Epping Justices [2011] 4 All ER 326, the court accepted that the rule covered admissions made by a lawyer in completing a case progression form. However, the judge should normally exercise their discretion under section 78 of PACE to exclude such evidence provided that the parties conducted the case within the letter and spirit of the Criminal Procedure Rules (CrimPR): R v Newell [2012] EWCA Crim 650.

Common enterprise

Words spoken by one defendant in pursuit of and for the purposes of advancing a common enterprise are admissible against all co-defendants alleged to be involved in the joint enterprise even where they are said in the absence of the co-accused.

Although most often invoked in conspiracy cases, the rule is not limited to such cases but extends to any allegation of a common enterprise to commit an offence (as is indicated by the use in the statute of that phrase rather than specifically "conspiracy.")

The rule is subject to what has been described as a "three-pronged test":

1. The words relied on must have been said by one of the other parties to the common enterprise; and
2. be reasonably open to the interpretation of having been made in furtherance of the alleged agreement; and
3. there must be some further evidence apart from those words to prove that the other defendant (against whom they are to be used in evidence) was a party to the common enterprise: (R v A Ltd, X, Y [2017] 1 Cr App R 1).

Expert Evidence

An expert may give evidence which relies upon the body of expertise relevant in their field.

S.114(1)(c) All parties to the proceedings agree to it being admissible

Agreement can be express or implied (R v Shah [2012] EWCA Crim 212).

S.114(1)(d) The court is satisfied that it is in the interests of justice for it to be admissible

In exercising the discretion under section 114(1)(d) the court must have regard to the following (and any others it considers relevant):

• How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
• What other evidence has been, or can be, given on the matter or evidence mentioned above;
• How important the matter or evidence mentioned is in the context of the case as a whole;
• The circumstances in which the statement was made;
• How reliable the maker of the statement appears to be;
• How reliable the evidence of the making of the statement appears to be;
• Whether oral evidence of the matter stated can be given and, if not, why it cannot;
• The amount of difficulty involved in challenging the statement;
• The extent to which that difficulty would be likely to prejudice the party facing it.

Section 114(1)(d) should not be used simply as a means of circumventing the requirements of the other exceptions. There should be a hierarchical approach to using section 114(1)(d) and it should not be invoked until all other gateways have been considered (EED v R [2010] EWCA Crim 1213).

However, in R v Xhabri [2006] 1 Cr. App. R. 26 the Court of Appeal, when considering an application to admit the previous complaint of a rape victim under Section 120 (see above) stated that even if the previous complaint fell outside the strict construction of Section 120 they would admit the evidence under Section 114(1)(d).

Multiple Hearsay (S.121 CJA)

Multiple hearsay refers to the situation where information is relayed through more than one person before it is recorded, i.e. where the evidence for the hearsay evidence is itself hearsay.

Under section 121 CJA Criminal Justice Act 2003 a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:-

1. Either of the statements is admissible under section 117 (business documents), section 119 (inconsistent statements) or section 120 (other previous statements); or
2. All parties agree; or
3. The court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

The wording of section 121(1)(c) ("the interests of justice require.....") suggests a higher threshold for admitting multiple hearsay than under section 114(1)(d). This is because multiple hearsay is more likely to be unreliable. However, there may be circumstances where it can be reliable.

Statements in documents as exhibits (S.122 CJA)

Copies of documents admitted under Section 119 or Section 120, which are exhibited, should not normally go out with the jury unless the court considers it appropriate or all parties agree: Section 122.

Capability of the maker of the statement (S.123 CJA)

The witness making any statement which is admissible by reason of Sections 116,117,119 or 120 must have the capability to make the statement, i.e. he must be capable of understanding the questions put to them about matters stated and giving answers which can be understood: Section 123.

For the interpretation of the similarly worded provisions as to "competence" under section 53 of the Youth Justice and Criminal Evidence Act 1999 see DPP v R [2007] EWHC 1842 (Admin).

Where the capability of the maker of the statement is challenged the issue must be resolved by hearing evidence (in the absence of a jury if there is one) and expert evidence is admissible. The burden of proof is on the party wishing to use the evidence and is on the balance of probabilities (section 123(4) CJA.)

Credibility of the maker of the statement (S.124 CJA)

Section 124 allows a party against whom hearsay evidence has been admitted to challenge the credibility of the person who made the hearsay statement. This can be done by adducing any of the following:

• evidence relating to the statement-maker's credibility;
• evidence of any matter (with the court's leave) on which, had the witness been present and cross-examined, their answer in cross-examination would have been final;
• evidence tending to prove that the maker of the statement had (at any time) made a previous inconsistent statement . This is admissible for the purpose of showing that the maker had contradicted himself.

This ability to challenge the credibility of a person who cannot be challenged by cross-examination because they do not give evidence as a witness was said by the Supreme Court in R v Horncastle [2010] 2 AC 373 to be one of the battery of measures which safeguard against an unfair trial, thereby rendering any "sole and decisive" rule against hearsay unnecessary.

Stopping the trial where the evidence is unconvincing (S.125 CJA)

In a jury trial, if after the close of the prosecution case the judge is satisfied that:

• the case against the defendant is based wholly or partly on hearsay; and
• the evidence from the hearsay is so unconvincing that given its importance a conviction would be unsafe

then the judge must either direct an acquittal or discharge the jury so that a re-trial can take place.

This provision specifically applies only to jury trials. In non-jury trials the judge or magistrates would be bound to acquit in these circumstances in any event.

General discretion to exclude hearsay evidence (S.126 CJA)

The court may refuse to admit hearsay evidence under section 126 CJA if it is satisfied that the statement will result in undue waste of time which outweighs any benefit to be gained from admitting it. This provision applies to both prosecution and defence evidence. It is in addition to and does not revoke any other statutory or common law powers to exclude evidence.

Expert evidence (S.127 CJA)

Section 127 allows an expert to rely on a statement prepared by another person and refer to it in their evidence. The exception is subject to the following requirements:

• the statement was prepared for the purposes of criminal proceedings; and
• the person making it had personal knowledge of the matters stated; and
• written notice is given of the intention to call the expert to give evidence based on the statement; and
• the written notice names the maker of the statement and the nature of what it contains.

Where an expert gives evidence using the statement of the other person in accordance with this section then the statement of that other person becomes evidence of its contents.

A party may apply to the court to exclude the statement (and thereby require that the maker is called if it is to be relied upon by the expert) in the interests of justice. A non-exhaustive list of considerations for the court is set out at section 127(5).

Confessions by co-accused

Section 128 CJA introduces section 76A into The Police and Criminal Evidence Act (PACE) 1984. This enables a defendant to introduce a confession made by a co-defendant subject to his proving (on the balance of probabilities) that the confession was not made by oppression or in circumstances likely to render it unreliable.

Representations other than by a person

A statement made by a machine (e.g. a computer), which relies on information supplied by a person, is only admissible to the extent that the information provided was accurate: section 129(1).

There is a presumption that a mechanical device has been properly set or calibrated: section 129(2).

Evidence at Retrial

The Criminal Appeal Act 1968 is amended by Section 131, so that if evidence was given orally in a trial it must be given orally at any retrial, unless all parties agree, or a witness is unavailable in accordance with Section 116, or unavailable for other reasons and the court admits it under Section 114(1) (d).

Policy and Practice

The Criminal Justice Act 2003 moves away from the strict common law rule against the admission of hearsay evidence in criminal proceedings. The current law is more flexible and promotes the inclusion of relevant hearsay evidence, on the basis that justice is not served if important information is excluded for no good reason. The weight to be attached to hearsay evidence is a matter for the jury or magistrates.

Article 6(3) (d) of the European Convention on Human Rights states that a person charged with a criminal offence has a right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". However, as decided by the Supreme Court in the case of Horncastle the safeguards built into existing English law (including those enacted in the CJA itself) are adequate to ensure that a defendant has a fair trial.

In Al -Khawaja and Tahery v UK (judgment given 15.12.2011) the European Court of Human Rights, sitting as a Grand Chamber held that a conviction based solely or decisively on evidence adduced from an absent witness does not automatically amount to a breach of the Convention. However, such cases must be subject to "the most searching scrutiny." The question for the court is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. The safeguards contained in the Criminal Justice Act 2003, supported by those in section 78 of the Police and Criminal Evidence Act 1984 and the common law are in principle strong safeguards designed to ensure fairness. If trial courts apply these properly and have regard to this Grand Chamber judgment and the decision of the Supreme Court in Horncastle, trials will be fair.

Prosecutors should assist the courts in the proper application of the safeguards, which include:

• Establishing that the absence of the witness falls within one of the categories defined in the Act and is justified. Death and medical incapacity are conclusive justification. Where fear is proven to be attributable to the defendant or those acting on their behalf, the defendant is taken to have waived their right to question witnesses and it is appropriate to allow the evidence of that witness to be read, even if it is the sole or decisive evidence.
• In all other cases making every effort to enable the witness to give evidence by applying for special measures or witness anonymity unless inappropriate or impracticable. It is particularly important that assurances are never given to potential witnesses that their statements will be read.
• Whatever the reason for the absence of the witness, the statement of a witness who is both absent and anonymous will not be admissible under section 116 CJA.
• Whatever the reason for the absence of the witness, evidence relevant to the credibility or consistency of the maker of the statement may be admitted even where the evidence would not have been admissible had the witness given evidence in person.
• Ensuring that the jury is given the traditional direction on the burden of proof and a direction on the dangers of relying on a hearsay statement.

Charging

Prosecutors should consider hearsay evidence and the potential for admitting it at every review of the evidence. The MG3 should identify hearsay evidence and any risks to admissibility, as part of the evidential stage of the Full Code Test in the Code for Crown Prosecutors. Cases involving vulnerable and intimidated witnesses may well be charged on the basis of a threshold test, but special measures and hearsay must be dealt with at the full review.

Case Preparation

Prosecutors should still consider whether the hearsay evidence in a statement is necessary. For example the hearsay evidence in a medical statement may not need to be adduced if the injured party is going to give evidence. The purpose of the medical report is usually to confirm the injury, not what was said to the doctor. A properly edited statement may be admitted by agreement pursuant to Section 9 Criminal Justice Act 1967.

Agreement to reading a written statement under section 9 CJA 1967 does not mean that any hearsay in the statement is agreed as admissible.The effect of section 9 is to render the statement admissible only to the like extent that oral evidence would have been admissible and if the oral evidence would have been hearsay and not admissible under any of the exceptions then it is equally inadmissible in its written form.

Where a section 9 statement contains inadmissible hearsay the solution is to agree to editing of the statement. The objection to the hearsay does not warrant insisting that the witness be called because exactly the same issue will need to be determined in respect of their live evidence. If it is not accepted that the statement contains inadmissible hearsay then consideration should be given to seeking a pre-trial binding ruling on the question.

Where evidence is admitted as hearsay, the court will have to consider what weight is to be given to the evidence and any jury will be directed to take account of the fact that the witness' evidence cannot be challenged by cross examination.

Consideration of hearsay may arise at various stages of the proceedings. Witnesses may become unavailable unexpectedly or a special measures application may be refused. Prosecutors should keep issues of hearsay under continual review and comply with the notice requirements wherever possible.

Rules of court

See Part 20 of the Criminal Procedure Rules for the correct procedure. Forms for use can be accessed on the Criminal Procedure Rules Forms page where written notice of application to adduce hearsay evidence is required. These are:

Part 20 Hearsay evidence

• Notice to introduce hearsay evidence rule 20.2 
• Notice to introduce hearsay evidence after notice rule 20.3
• Application to exclude hearsay evidence where no notice is required rule 20.3

Proof

Most of the hearsay provisions apply equally to the defence and the prosecution, with the added safeguard for the defendant that any matters requiring proof must be proved to the criminal standard by the prosecution and on a balance of probabilities by the defence.

Statements in documents can be proved by producing the original document or an authenticated copy of it: Section 133.

Death can be proved by certificate and unfitness through bodily condition by medical evidence.

Police Officers may have to give evidence to show what steps have been taken to trace unavailable witnesses or what would be required to secure the attendance of a witness outside the UK. What is reasonable will depend on the importance of the evidence, the reason for non-attendance, prejudice to the defendant and the cost of bringing the witness to court: see R v Castillo [1996] 1 Cr. App. R. 438.

Annex A: S.116 Hearsay, Criteria and Potential Challenges

Annex B: Useful Cases where Evidence was held not to be Hearsay